The record reflects that appellee offered to sell Undercover Detective Rose Spears some cocaine. This eventually led to the police stopping and searching appellee's car and finding cocaine in it. A single indictment charged appellee with one count of possession of a controlled substance with intent to deliver and another count of possession of a controlled substance.

Pursuant to appellee's discovery request that the prosecution produce any statements appellee had made "in connection with the charges," the prosecution produced an arrest summary. This arrest summary stated that appellee came to the attention of the police after appellee told Spears that he had some cocaine "in his possession."

On the morning of trial but before the picked jury had been empaneled and sworn, the prosecution received from Spears a videotape of the police stop of appellee's car and an audiotape of conversations that Spears had had with appellee. These tapes were beneficial to the prosecution's case. Appellee's lawyer declined the prosecution's offer to seek additional time from the trial court for appellee's lawyer to review the tapes. The prosecution told appellee's lawyer that it would not use these tapes at trial since the prosecution had not produced them during discovery.

During trial, appellee did not object when the prosecution mentioned during opening statements that Spears would testify that appellee offered to sell her some cocaine. But, when the prosecution later asked Spears this question on direct examination, appellee's lawyer objected that the prosecution had not "disclosed that conversation." The prosecution responded by pointing to that portion of the arrest summary stating that appellee told Spears that he had some cocaine "in his possession." The trial court allowed the prosecution to continue questioning "[a]s long as it [was] limited to that."

When Spears testified on direct examination that appellee offered to sell her some cocaine, appellee objected that this violated the discovery order and asked for a mistrial. The trial court noted that the arrest summary contained statements "[r]egarding possession, not delivery." The trial court granted appellee's request for a mistrial so that the prosecution would have "another opportunity to give discovery to [appellee] so we can have a full disclosure to the defense about what [the prosecution intended] to present."

Later that day, appellee filed a habeas corpus application in the trial court. This habeas corpus application asserted that retrial was jeopardy-barred under the Texas Constitution as interpreted by Bauder I because the prosecution used "deliberate or reckless" methods that rendered "trial before the jury unfair to such a degree that no judicial admonishment can (sic) cure it." (Emphasis in Original). Appellee's habeas corpus application raised no federal constitutional double jeopardy claims. Appellee's sole witness at the hearing on his habeas corpus application was the prosecutor who agreed that the tapes Spears produced on the morning of trial were "severely damaging to appell[ee]" and that the mistrial benefitted the prosecution by giving it the opportunity to get these tapes into evidence on retrial. ⁽¹⁾ The prosecutor also agreed that securing a conviction without appellee's statements to Spears "would have been pretty tough to do." ⁽²⁾ On cross-examination, the prosecutor testified that she did not believe that she was doing anything objectionable by questioning Spears about whether appellee offered to sell Spears some cocaine because she believed that the arrest summary covered this.

Appellee claimed during closing arguments at the habeas hearing that the double jeopardy provision of the Texas Constitution as interpreted by Bauder I barred retrial because the prosecution intentionally or recklessly caused the mistrial:

As far as whether or not [the prosecutor] knew what was going on, and whether or not she knew what was going on, and whether or not she knew what she was going to do was going to cause a mistrial, she testifies that she knows that I object. She says that she knows I take the discovery order seriously. The Court assumed that everybody understands that everybody takes the discovery order seriously, and she admits in retrospect that I hadn't been given anything that could be characterized as a statement by the defendant or by my client offering to sell cocaine.

Now, as far as whether or not she could assume that there was a risk, because the intentional standard is what's set out by the federal standard, [Bauder I] adds recklessness as a culpable mental state as to whether or not the State was reckless in causing the mistrial to occur.

Your Honor, certainly "reckless" has been met here. I believe that based on the-what [Bauder I] says about what shows intentional conduct has been absolutely met, your Honor. They get a tape. The tape is dispositive of the case. They can't get it in, and so they try to get it in anyway, and I objected to this, your Honor. When she started talking about statements made by [appellee], I started raising my objections.

The trial court granted habeas corpus relief on the possession with intent to deliver count and denied relief on the possession count. The trial court made no findings of fact or conclusions of law.

In the State's direct appeal, the Court of Appeals decided that the double jeopardy provision of the Texas Constitution barred a retrial on the possession with intent to deliver count:

The trial record, which was admitted into evidence at the State's request, shows the prosecutor proceeded to inquire about Spears's conversation with appell[ee] concerning the purchase of narcotics, despite specific court instructions not to stray from the arrest summary. [Footnote Omitted] The trial record also shows the prosecutor knew the tapes were "severely damaging" to appell[ee] and that admission of the tapes "would have substantially increased [the State's] chances of securing a conviction." The State does not contend, nor do we conclude, the state of law in this case is not well-settled. From this record, the trial judge could have concluded appell[ee]'s motion was not a choice made in response to ordinary reversible error to avoid conviction, appeal, reversal, and retrial, but was precipitated by the prosecutor deliberately or recklessly crossing the line between legitimate adversarial conduct and manifestly improper methods. [Citation Omitted] Furthermore, the trial judge could have concluded the prosecutor's conduct rendered the trial so unfair that no judicial admonishment could have cured it. [Citation Omitted] Under these facts and circumstances, we cannot conclude the trial court erred in granting habeas relief. We resolve the State's sole issue against it. ⁽³⁾

The Court exercised its discretionary authority to address grounds three and four of the State's petition for discretionary review. Ground three asserts that we should "reexamine and abandon" Bauder I because, among other things, the current test for determining whether a retrial in cases like this is jeopardy-barred under the Texas Constitution is unclear. Ground four asserts that the Court of Appeals did not properly analyze this case under current law. ⁽⁴⁾

In Bauder I, this Court held that, when a trial court has granted a mistrial at the defendant's request, a retrial is jeopardy-barred under the Texas Constitution not only under conditions that bar retrial under the federal constitution but also "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Bauder I, 921 S.W.2d at 699. In the next two sentences, Bauder I, 921 S.W.2d at 699, also stated:

Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion [for a mistrial]. But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing. ⁽⁵⁾

Despite this clear language in Bauder I, our decision in Bauder II stated that the inquiry is "not the correctness of the ruling granting the mistrial." Ex parte Bauder, 974 S.W.2d 729, 731-32 (Tex.Cr.App. 1998) ("Bauder II"). Bauder II, 974 S.W.2d at 732, stated that the two questions to be decided are:

[t]herefore, the [two] questions presented in this case are, on the one hand, whether the [defendant's] motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversarial gamesmanship and manifestly improper methods" (citation omitted) that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it? ⁽⁶⁾

Our decision in State v. Lee is the most recent decision on this subject. State v. Lee, 15 S.W.3d 921 (Tex.Cr.App. 2000). There this Court reaffirmed the holding in Bauder I that when a trial court has granted a mistrial at the defendant's request, a retrial is jeopardy-barred under the Texas Constitution "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Lee, 15 S.W.3d at 923. Lee also reaffirmed "that the critical questions to be addressed in this context" are the two questions set out above from Bauder II. Lee, 15 S.W.3d at 923. Upon resolving these two questions in favor of the State, Lee concluded that it could find no "reckless disregard that a mistrial would be reasonably certain to occur." Lee, 15 S.W.3d at 924-26.

Since the Court has decided that Bauder I needs some more clarifying, then it must agree that this Court's decisions in Bauder I, Bauder II and Lee are not models of clarity. And, they are not models of clarity. For example, that portion of Bauder II saying that the inquiry is "not the correctness of the ruling granting the mistrial" contradicts that portion of Bauder I saying that "the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion [for a mistrial]." Compare Bauder II, 974 S.W.2d at 731-32, with, Bauder I, 921 S.W.2d at 699.

Bauder II could also be read as contradicting itself where it says that the inquiry is "not the correctness of the ruling granting the mistrial" and then later it says that courts must determine whether the prosecution recklessly did something "that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it." Bauder II, 974 S.W.2d at 731-32. In many cases, however, whether a judicial admonishment could have cured whatever the prosecution did to cause a mistrial has some bearing on and is somewhat dispositive of an inquiry into the "correctness of the ruling granting the mistrial."

Our decisions in Bauder II and Lee could also be read to mean that the two questions set out in Bauder II are necessarily dispositive of the Bauder I determination of whether the prosecutor was "aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." The Court of Appeals apparently read Bauder II and Lee this way since these are the only two questions that the Court of Appeals addressed. Peterson, slip op. at 7-8. It did not address nor decide whether the prosecutor was "aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request" as required by Bauder I.

Instead of pursuing a quixotic attempt to clarify this jurisprudence, the Court should reexamine it. This would require the Court to construe our state constitutional double jeopardy provision contained in Article I, Section 14, of the Texas Constitution. When we construe a constitutional provision, our duty is to give effect to the intent of the voters who adopted it. See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App. 1993); see also Cobb v State, 85 S.W.3d 258, 268 (Tex.Cr.App. 2002), cert. denied, 123 S.Ct. 1252 (2003) (the judiciary would exceed its constitutional authority to create new state constitutional doctrines without solid jurisprudential foundation). Our personal beliefs on whether these voters adopted a wise policy are not relevant to this determination. See id.

Our state constitutional double jeopardy provision obviously was patterned after its federal constitutional counterpart. See Bauder I, 921 S.W.2d at 698. Therefore, in construing our state constitutional double jeopardy provision, the history of the federal constitutional double jeopardy provision and United States Supreme Court decisions construing it are persuasive. The policies advanced by constitutional double jeopardy principles are usually stated as protecting a citizen against a second prosecution for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. See United States v. Dixon, 113 S.Ct. 2849 (1993); North Carolina v. Pearce, 89 S.Ct. 2072, 2076 (1969). These protections obviously are not implicated when a criminal proceeding is terminated before a verdict is reached.

In Oregon v. Kennedy, however, the United States Supreme Court decided that when government conduct at trial is "intended to goad [a] defendant into moving for a mistrial ... a defendant [may] raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 102 S.Ct. 2083, 2089 (1982) (internal quotations omitted). The Court further stated that government conduct "that might be viewed as harassment or overreaching" does not bar a retrial under double jeopardy principles "absent [prosecutorial] intent to subvert [double jeopardy] protections." Id. ⁽⁷⁾ The double jeopardy interest that Kennedy claimed to promote was "the defendant's valued right to complete his trial before the first jury." Kennedy, 102 S.Ct. at 2088.

As a matter of state constitutional law, Bauder I claimed to bar "retrial under slightly more expansive conditions than those allowed by the United States Supreme Court" in Kennedy. Bauder I, 921 S.W.2d at 699. According to Bauder I, this includes not only government conduct "intended to induce a motion for mistrial" but also "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Id. (no "distinction of constitutional significance between conduct of a prosecuting attorney in which he intends to cause a mistrial and conduct of a prosecuting attorney which he is aware is reasonably certain to result in a mistrial"). Like Kennedy, the double jeopardy interest that Bauder I claimed to promote was the defendant's valued right "to be tried in a single proceeding by the jury first selected." Bauder I, 921 S.W.2d at 699.

Bauder I also promoted the rationale that its "less subjective rule" had "practical advantages" because this rule did not depend "upon proof of the prosecutor's specific purpose [of intentionally goading the defendant into moving for a mistrial]." Id. Bauder I also explained that "the conditions under which retrial is barred will generally be clearer when the prosecutor's subjective intent is not an issue, permitting a more certain application of the rule in most cases." Id.

Even if all this were true (which for reasons later stated, it is not), it still must be remembered that Texas' double jeopardy provision was patterned after its federal counterpart and that the history of the federal double jeopardy provision is persuasive evidence of the intent of the voters who adopted our state constitutional double jeopardy provision. And, the history of the federal double jeopardy provision indicates that discharge of the jury before a verdict is reached and a defendant's "valued right to be tried by the first selected jury" were never intended to implicate double jeopardy principles. See Crist v. Bretz, 98 S.Ct. 2156, 2163-68 (1978) (Powell, J., dissenting) (thorough historical discussion of double jeopardy implications of premature discharge of the jury) and, e.g., at 2167 (concluding that courts "simply enlisted the [common-law] doctrine concerning needless discharge of juries in the service of double jeopardy principles, largely without analysis and apparently with little awareness of history").

This State's historical record supports Justice Powell's view in Crist and the North Carolina v. Pearce view that double jeopardy principles were meant only to protect against a second prosecution for the same offense after acquittal or conviction and that discharging a jury before a verdict is reached does not implicate these principles. Our constitution does not (and never did in its earlier 1845, 1861, and 1866 versions) specifically address the consequences of a mistrial. See Lee, 15 S.W.3d at 928 (Keasler, J., concurring).

Legislative action at the time of these early constitutions also supports the view that mistrials had no double jeopardy implications. For example, the 1856 Code of Criminal Procedure provided:

Art. 18. No person for the offense can be put in jeopardy of life or limb. This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a Court of competent jurisdiction and duly convicted.

Art. 19. The foregoing article will exempt no person from a second trial, who has been convicted on an illegal instrument or information, and the judgment thereupon arrested, nor where a new trial has been granted to the defendant, nor where a jury has been discharged without rendering a verdict, nor for any case other than that of a legal conviction.

Art. 20. By provisions of the Constitution, an acquittal of the defendant exempts him from a second trial, or a second prosecution for the same offense, however, irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial, in a Court having no jurisdiction of the offense, he may, nevertheless, be prosecuted again in a Court having jurisdiction.

See also State v. Lee, 15 S.W.3d at 927-31, 928 (Keasler, J., concurring).

Also, during the approximately 150 years before our decision in Bauder I, our state constitutional double jeopardy provision had never been interpreted as having any application to the mistrial setting or to when a prosecutor recklessly or even intentionally caused a mistrial. See Lee, 15 S.W.3d at 927-28 (Keasler, J., concurring). It also is noteworthy that Bauder I did not even purport to rest its decision on the intent of the voters who adopted our state constitutional double jeopardy provision or on any other aspect of "Texas history, jurisprudence, or law." See Cobb, 85 S.W.3d at 268 (state constitutional interpretation should be based on "aspects of Texas history, jurisprudence, or law"). Instead, Bauder I used a standardless mode of state constitutional interpretation to make up a state constitutional right which for over 150 years had not existed. But see Cobb, 85 S.W.3d at 268; Bauder I, 921 S.W.2d at 703-09 (McCormick, P.J., dissenting).

In addition, Bauder I is simply wrong to claim that it bars "retrial under slightly more expansive conditions than those allowed by the United States Supreme Court" in Kennedy. See Bauder I, 921 S.W.2d at 699. Bauder I is also wrong to claim that there is no "distinction of constitutional significance between conduct of a prosecuting attorney in which he intends to cause a mistrial and conduct of a prosecuting attorney which he is aware is reasonably certain to result in a mistrial." See id. ⁽⁸⁾

Bauder I's "culpable mental state" is completely different than that discussed in Kennedy. Kennedy's culpable mental state involves the prosecutor's intent to subvert double jeopardy protections. Kennedy, 102 S.Ct. at 2089 (barring retrial when prosecution "goads" defendant to move for mistrial with intent "to subvert [double jeopardy] protections"). Bauder I's culpable mental state, however, involves only whether a prosecutor intentionally or recklessly caused a mistrial and not whether a prosecutor intentionally or even recklessly subverts double jeopardy protections. These are two completely different tests. It is conceivable that a prosecutor could recklessly or even intentionally cause a mistrial without having any intent to subvert double jeopardy protections. Bauder I, therefore, can bar retrial under greatly expanded conditions than those allowed by the Supreme Court in Kennedy. ⁽⁹⁾

Bauder I is also wrong to claim that its rule "will generally be clearer when the prosecutor's subjective intent is not an issue, permitting a more certain application of the rule in most cases." See Bauder I, 921 S.W.2d at 699. But Bauder I's main holding--that a retrial is barred "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request"-literally makes the prosecutor's subjective intent an issue. This standard is essentially a recklessness standard which our law defines as a subjective mental state. See Section 6.03(c).

And, Bauder I's own history undermines its claim that it permits "a more certain application of [its] rule in most cases." Bauder I generated five judicial opinions over a period of five years before the case was finally disposed of adversely to the defendant. ⁽¹⁰⁾ That this is the fourth time in seven years that this Court has had to clarify Bauder I further undermines Bauder I's claim that it permits "a more certain application of [its] rule in most cases."

And, it is highly significant that the Court's opinion in this case retreats from these rationales and candidly admits that Bauder I "has not always proven easy to apply" and that the "prosecutor's mens rea is pivotal." See Peterson, slip op. at 15 (proof of Bauder I's "reckless act, is no less subjective a standard than proof of [Kennedy's] intentional act"), and at 16 (acknowledging that the "Bauder I standard has not always proven easy to apply"). The unclarified holding in Bauder I has, therefore, been transformed into a made-up constitutional rule in search of a rationale to justify its existence.

As another aid to understand why Bauder I should be overruled, it is only necessary to summarize this Court's current case law and how it has been and will be applied. Bauder I, 921 S.W.2d at 699, held:

[w]e therefore hold that a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request. Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion. But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.

But, just two years later, Bauder II, 974 S.W.2d at 731, 733, decided that the "question is not the correctness of the ruling granting the mistrial;" rather, the questions presented:

. . . are, on the one hand, whether the [defendant's] motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversarial gamesmanship and manifestly improper methods (citation omitted) that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?

Then, our decision in Lee, 15 S.W.3d at 925-26, resolved the state constitutional double jeopardy question with a discussion about the defendant's "prearrest, pre-Miranda silence" which is far afield from anything that double jeopardy principles are meant to protect. Lee, 15 S.W.3d at 925-26, decided that:

Because the prosecutor's statement [that resulted in a mistrial at the defendant's request] concerning [the defendant's] prearrest, pre-Miranda silence was not clearly erroneous, it cannot be said that there was any intent to induce a mistrial or reckless disregard that a mistrial would be reasonably certain to occur.

Today, the Court, as it has at least three times before, reaffirms the unclarified holding of Bauder I that when a defendant has successfully moved for a mistrial, a retrial is jeopardy-barred under the Texas Constitution not only under the Kennedy standard but also "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." See Peterson, slip op. at 14. The Court explains that this standard is satisfied when a prosecutor "either deliberately or recklessly" uses "manifestly improper prosecutorial methods." See Ex parte Peterson, slip op. at 16.

The Court further explains that Bauder I requires a three-part analysis in analyzing a double jeopardy mistrial claim under Kennedy and Bauder I and all the other subsequent opinions that were supposed to have clarified Bauder I.

1) Did manifestly improper prosecutorial misconduct provoke the mistrial? [Footnote Omitted].

2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?[ ⁽¹¹⁾] [Footnote Omitted] And

3) Did the prosecutor engage in that conduct with ... conscious disregard for a substantial risk that the trial court would be required to declare a mistrial (Bauder standard)?

See Peterson, slip op. at 19-20. ⁽¹²⁾

The Court's opinion also sets out various nonexhaustive factors "that trial and appellate courts might consider in assessing the prosecutor's mens rea" apparently under part three of its analysis although the Court's opinion states that they are "suggested criteria by which to gauge [all] three prongs." See Peterson, slip op. at 26.

1) Was the misconduct a reaction to abort a trial that was "going badly for the State"? In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal? [Footnote Omitted].

2) Was the misconduct repeated despite admonitions from the trial court?

3) Did the prosecutor provide a reasonable, "good faith" explanation for the conduct?

4) Was the conduct "clearly erroneous"? [Footnote Omitted].

5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety? [Footnote Omitted]

6) Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct? [Footnote Omitted].

See Peterson, slip op. at 22-23.

It can hardly be disputed that none of this does much to clarify Bauder I. Bauder I will continue to be difficult to apply and will do little to promote (if not actually frustrate) the interests protected by double jeopardy principles. See, e.g., Bauder, 2 S.W.3d at 378 n.1 (noting probable contradictions between this Court's decisions in Bauder I and Bauder II). Bauder I, therefore, contains the seeds for its own demise where it stated:

As we see it, there is no wisdom in a double jeopardy standard of decision which is at once difficult to apply and does little to promote interests protected by the Double Jeopardy Clause.

See Bauder I, 921 S.W.2d at 699.

Finally, the Court's opinion states that, in reviewing a trial court's ruling such as the one here with no explicit fact findings, appellate courts cannot defer to a trial court's "implicit factual findings" if appellate courts "are unable to determine with any certainty what the trial court's implied factual findings are from the record." See Peterson, slip op. at 24-25. The applicable standard of review in cases like this, however, requires the appellate court to imply the necessary fact findings to support the trial court's legal ruling and then determine whether the record supports these implied fact findings. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Cr.App. 2000) (appellate standard of review requires appellate court to assume "that the trial court made implicit findings of fact supported in the record that buttress its [legal] conclusion"); Guzman, 955 S.W.2d at 89; see also State v. Ross, 32 S.W.3d 853, 855-58 (Tex.Cr.App. 2000) (appellate court deferred to trial court's "implicit [credibility] finding" even though appellate court was "unable to determine with any certainty what the trial court's implied factual findings [were] from the record"). This standard does not require the appellate court to perform the impossible task of determining "with any certainty what the trial court's implied factual findings are from the record." Instead, it requires the appellate court to defer to "implicit factual findings" that the record supports.

In this case, for example, the Court of Appeals arguably could affirm the trial court's ruling on the basis that the question of whether the prosecutor "was aware but consciously disregarded the risk that an objectionable event for which [s]he was responsible would require a mistrial at the defendant's request" is one of those application of law to fact questions whose resolution turns solely on an evaluation of credibility and demeanor. See Ross, 32 S.W.3d at 857; Guzman, 955 S.W.2d at 89. And, resolving the issue this way would squarely present ground three for this Court to decide. I respectfully dissent.

Hervey, J.

Filed: October 8, 2003

Publish

1. Ex parte James Michael Peterson, slip op. at 3-4 (Tex.App.-Dallas, No. 05-01-01093-CR, Delivered December 20, 2001) (unpublished).

2. Peterson, slip op. at 3-4.

3. Peterson, slip op. at 7-8.

4. The Court decides that it need not address ground three because "the courts below were mistaken in their application of [Bauder I] to this situation." See Ex parte Peterson, S.W.3d slip op. at 2 (Tex.Cr.App. No. 0201-02, delivered this date). The Court, therefore, remands the case to the Court of Appeals for further proceedings under its "clarification" of Bauder I (this, of course, is exactly what happened in Bauder which generated five judicial opinions over five years before the case was finally disposed of).

The Court's opinion, however, does not dispose of ground three which should be dismissed without prejudice (or conditionally held) in the event that the Court of Appeals correctly decides that a subsequent prosecution is jeopardy-barred under Bauder I. Under these circumstances, ground three would squarely be presented for this Court to decide.

5. On remand from Bauder I, the Court of Appeals decided that "the trial court need not have granted Appellant's motion for mistrial; therefore, his subsequent trial was not jeopardy-barred." Bauder v. State, 936 S.W.2d 19, 20 (Tex.App.-San Antonio 1996). At this time, the Court of Appeals understood Bauder I as calling for a two-step analysis:

First, [the appellate court] must determine whether the trial judge "need not have granted the defendant's motion" for mistrial. This first step in the analysis is necessary because the prosecutor can only be accountable for a mistrial if the mistrial was properly granted. Second, we must determine whether the prosecutor either intended to induce the mistrial or "was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request."

Bauder, 936 S.W.2d at 20.

6. On remand from Bauder II, the Court of Appeals rejected the defendant's double jeopardy claim for the third time. Ex parte Bauder, 2 S.W.3d 376, 378 (Tex.App.-San Antonio, 1999, pet. ref'd). The Court of Appeals again decided that the mistrial was erroneously granted because a judicial admonishment could have cured any prejudice; but, it presumed from this Court's reversal in Bauder II of the Court of Appeals' second opinion "that neither the necessity of the mistrial nor the efficacy of a judicial admonishment is dispositive." Bauder, 2 S.W.3d at 378 n. 1.

7. Kennedy is usually characterized as holding that double jeopardy principles bar a retrial when the government "intentionally goads" a defendant into successfully moving for a mistrial. In Kennedy, the Supreme Court apparently was applying the "former acquittal" double jeopardy protection because in other parts of its opinion it refers to a "prosecutor's actions giving rise to [a defendant's] motion for mistrial ... in order to goad the [defendant] into requesting a mistrial" when the record shows that "the jury was likely to acquit the accused." Kennedy, 102 S.Ct. at 2088 n. 4, 2091 (internal quotations omitted) (emphasis supplied). So Kennedy might only be aimed at a prosecutor goading a defendant into moving for a mistrial when the defendant's mistrial motion is necessitated by "prosecutorial impropriety designed to avoid an acquittal." See id. (emphasis supplied).

8. State statutory law recognizes a significant distinction between intentional and reckless mental states. Compare Section 6.03(a) (definition of intentional culpable mental state), with, Section 6.03(c) (definition of reckless culpable mental state).

9. Viewed in the light most favorable to the trial court's ruling, the evidence and reasonable inferences therefrom arguably would support findings that the prosecutor was "goading" appellee into moving for a mistrial with the "intent to subvert [appellee's] double jeopardy protections" by avoiding an acquittal on the possession with intent to deliver count since the prosecution apparently had little or no evidence that was produced in response to the discovery order that would have supported a guilty verdict on that count. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997) (appellate courts should defer to trial court's implied fact findings that the record supports). Even though the evidence might support these findings for purposes of establishing a federal constitutional double jeopardy claim under Kennedy, this evidence arguably does not support a finding that the prosecutor was "aware but consciously disregarded the risk" that her questions to Spears concerning whether appellee offered to sell her cocaine "would require a mistrial at the [appellee's] request"for purposes of establishing a state constitutional double jeopardy claim under Bauder I. The prosecutor could have believed that the trial court, instead of granting a mistrial, would delay the trial to supplement discovery to provide appellee with an opportunity to defend against the "new" evidence that appellee offered to sell Spears some cocaine. See Smith v. State, 779 S.W.2d 417, 431 (Tex.Cr.App. 1989). The law, at least, appears not to be settled as to what a trial court can do under these circumstances which, pursuant to our decision in Lee, would be fatal to appellee's state constitutional double jeopardy claim under Bauder I. See Lee, 15 S.W.3d at 925-26; Smith, 779 S.W.2d at 431. Bauder I, therefore, can also restrict the conditions under which a retrial would be barred under Kennedy. In the final analysis then, Bauder I can bar retrial when double jeopardy interests would permit it and it can permit retrial when double jeopardy interests would bar it.

10. See Bauder v. State, 880 S.W.2d 502 (Tex.App-San Antonio 1994); Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App. 1996); Bauder v. State, 936 S.W.2d 19 (Tex App.--San Antonio 1996); Ex parte Bauder, 974 S.W.2d 729 (Tx.Cr.App. 1998); Ex parte Bauder, 2 S.W.3d 376 (Tex.App.-San Antonio 1999).

11. This essentially is what this Court rejected in Bauder II, 974 S.W.2d at 731-32.

12. It is unclear whether all three of these factors must be met to satisfy Bauder I and its clarifying progeny. Perhaps the Court can clarify this in a later opinion.